Crossing the judicial line

The Canadian Judicial Council had been in existence for more than a decade before its first formal hearing into the conduct of a judge and the central issues were the limits on speech outside of court and whether that could be subject to disciplinary action.

Crossing the judicial line
Illustration: Eva Tatcheva

The Canadian Judicial Council had been in existence for more than a decade before its first formal hearing into the conduct of a judge and the central issues were the limits on speech outside of court and whether that could be subject to disciplinary action.

The inquiry in 1982 into then-B.C. Supreme Court Justice Thomas Berger was very high profile and controversial at the time and it highlighted issues that would likely spark similar debate even today.

A fellow judge, sitting on the Federal Court of Canada, filed a complaint against Berger over comments he made to the media months earlier, as well as an opinion piece, that related to the political negotiations, which ultimately resulted in the patriation of the Constitution and the enactment of the Charter of Rights.

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Berger, who headed the Mackenzie Valley Pipeline Inquiry in the mid-1970s, was sharply critical of the initial decision during the negotiations not to entrench Indigenous rights in the Constitution and argued that Quebec should have a veto over any changes.

Among his public comments in 1981 were that the country’s first ministers were “mean-spirited and unbelievable” in “abandoning” native rights.

Berger did not recognize the authority of the judicial council based on his interpretation of judicial independence and did not participate in the hearing process. Ultimately, the panel concluded that his comments were improper but did not warrant sanction because it was the first time the issue had been before the judicial council.

“We are prepared to accept that he had the best interests of Canada in mind when he spoke, but a judge’s conscience is not an acceptable excuse for contravening a fundamental rule so important to the existence of a parliamentary democracy and judicial independence,” the disciplinary panel wrote in its decision.

In future, judges “should avoid taking part in controversial political discussions except only in respect of matters that directly affect the operation of the court,” the panel stated.

Nearly four decades later, the rules about what is permissible for judges to comment on outside court and activities in the name of the public good do not appear to be any clearer. Perhaps with that in mind, the Canadian Judicial Council announced in March that it is reviewing and planning to update its “ethical principles for judges” for the first time in two decades.

“I still think it would be a mistake to say that judges should be a monk in a monastery,” says Wayne MacKay, professor emeritus at the Schulich School of Law at Dalhousie University. “We are increasing the diversity of the judiciary. If we do not allow that diversity to be expressed, we are losing that value,” he suggests.

The law professor wrote a paper in 1993 entitled “Judicial Free Speech and Accountability: Should Judges Be Seen but Not Heard?” that was later cited by the Supreme Court of Canada in an appeal related to the conduct of a youth court judge in Quebec. “It is not desirable that judges cloister themselves away from the real world from which their cases arise,” he wrote.

At the same time, MacKay says, it is not an easy issue for judges to grapple with, even now. “You have to be careful about what you say. It is much more complicated in a time of social media. You should be involved in your community but consider whether any specific acts might be problematic,” he says.

The issues raised in that academic paper seem just as relevant in 2019, considering two recent disciplinary decisions involving Ontario judges.

Superior Court Justice Patrick Smith was found to have breached a section of the Judges Act when he agreed to serve as the interim dean of the law school at Lakehead University in Thunder Bay, Ont. after an “urgent request” by the institution’s interim president.

Smith obtained permission from the chief justice of the Superior Court in Ontario as well as the federal justice minister to take the position for six months, without pay and under specific conditions. A review panel of the Canadian Judicial Council decided that the “public controversy” that included criticism by First Nations groups amounted to a violation of a section of the statute. Smith was not sanctioned because his actions were in good faith.

The judge is seeking judicial review of the judicial council’s finding, although it is on hold pending a decision in another discipline case on whether its decisions can be subject to review by the Federal Court of Canada.

“What is the message coming from the Canadian Judicial Council?” asks Brian Gover, who is representing Smith. “My concern is the consideration of what is a ‘public controversy’ when the public may not be well informed,” adds Gover, a partner at Stockwoods LLP in Toronto.

In the other proceeding, Justice Donald McLeod was admonished by the Ontario Judicial Council, although not sanctioned, for his role in an organization he co-founded to look at ways to assist young members of the Black community and to try to break the cycle of gun violence. It said the “laudable goals” of the provincial court judge did not excuse actions that created the perception he was entering the political arena.

Among the many letters of support provided to the disciplinary panel were five from McLeod’s judicial colleagues. Justice Jill Copeland described McLeod as someone who approaches his duties in an independent and impartial fashion and treats people in the courtroom with empathy and respect.

“Diversity is also important outside the courtroom in terms of role modelling and education. As a woman judge, in a context where there are still challenges in relation to equal progress for women in the legal profession and in society, I feel particular obligations with respect to showing younger women that they can have a successful career, that they can aspire to the bench,” says Copeland, who is now on the Superior Court and is a former executive legal officer of the Supreme Court.

Lori Anne Thomas, president of the Canadian Association of Black Lawyers, points out that one of the considerations for judicial applications is a lawyer’s involvement in the community. “To be cut off, if you are appointed, basically leads to an ivory tower situation. You should be careful, but you should not be separated from your community,” says Thomas, who is also a member of the executive committee of the Ontario Criminal Lawyers’ Association.

McLeod was raised by a single parent in modest circumstances in Toronto. He was a defence lawyer before his appointment to the bench in 2013. According to Thomas, the importance of appointments of individuals from communities that are not well represented on the judiciary cannot be underestimated. “It is inspirational. They are constantly being called upon and in demand to speak,” says Thomas.

In Ontario, at least, some recent disciplinary proceedings have created a “chilling effect” among members of the judiciary in terms of community involvement, she says.

The review of ethical principles for federally appointed judges by the Canadian Judicial Council is sorely needed, says law professor Richard Devlin. “The world has changed dramatically over the past 20 years,” says Devlin, a professor at Dalhousie and chairman of the Canadian Association for Legal Ethics. “We should be allowing judges to be more active in the community. We do not want them to be disconnected,” he says.

The fundamental difficulty is in defining what is acceptable. “It is a tricky question. There is never going to be a bright line. If judges are too involved in the community, they may have to recuse themselves from certain cases. That could be a real issue in smaller communities,” Devlin says.

In its decision in the McLeod disciplinary hearing, the panel warned against judges engaging in extra-judicial activity that seeks policy changes unless it is “directly tied” to the administration of justice.


 

Canadian judiciary by the numbers*

2 The number of provinces with a female chief justice
31 Percentage of female justices on the Quebec Court of Appeal
50 Percentage of female justices on the Alberta Court of Appeal
30 Percentage of female justices on the Federal Court of Canada
100 Percentage of chief justices of a province whose legal background was either as a litigator, corporate/commercial or administrative lawyer
0 Percentage of chief justices of a province with a family law background
7 Percentage of judges on the Ontario Court of Appeal from a visible minority
0 Percentage of judges on the Quebec Court of Appeal from a visible minority
0 Percentage of judges on the BC Court of Appeal from a visible minority
32 Percentage of Superior Court judges in Ontario who are female
25 Percentage of Court of Queen’s Bench judges in Saskatchewan who are female
40 Percentage of Court of Queen’s Bench judges in Alberta who are female
24 Percentage of all federally appointed judges in Canada who are currently serving in a supernumerary capacity

Source: Office of the Commissioner for Federal Judicial Affairs, official court websites. All totals include supernumerary judges. Data is current as of August 1/16


Even in this context, however, these types of actions may result in public criticism. In December 2016, the Manitoba justice minister and the province’s three most senior judges sent a letter to the federal justice minister, asking for legislative amendments to limit the right of criminal defendants to a preliminary hearing, as part of a pilot project. The letter stated that the goal was to reduce delays in the criminal justice system. The request was criticized by the Criminal Defence Lawyers Association of Manitoba and the Canadian Bar Association. They noted that, on average, only three per cent of criminal cases in the province had preliminary hearings each year. “Anyone who seeks to fundamentally overhaul the criminal justice, as is proposed here, should provide evidence to support that the change will have the desired result,” the criminal lawyers group wrote in response to the proposal.

The federal government ultimately went even further than what the judges requested and introduced amendments to the Criminal Code that remove the right to a preliminary hearing unless a defendant is charged with a crime where the maximum sentence is life in prison (at press time, the legislation was still before the Senate).

In addition to extra-judicial activities, speeches outside of court will also be part of the judicial council review and it is an area where judges have often faced criticism from outside organizations — fairly or unfairly.

The most recent example was earlier this year when a speech by Glenn Joyal, chief justice of the Manitoba Court of Queen’s Bench, was highlighted in media reports. (Joyal was also one of the Manitoba judges seeking the preliminary hearing changes.)

The judge was the keynote speaker in 2017 at the annual “Law and Freedom” conference hosted by the Canadian Constitution Foundation. The right-of-centre advocacy group regularly seeks intervener status in Charter-related court proceedings. It has argued against expanding collective bargaining rights for public sector unions, in favour of Trinity Western University’s bid for law school accreditation and against human rights codes that restrict disseminating anti-gay information. It has also received sizable donations from the foundation run by the family of the late mining magnate Peter Munk.

Joyal, who is the senior member of the Canadian Judicial Council’s judicial conduct committee, expressed support in his speech for a theory of “coordinate interpretation” of the Constitution, with an equal role for both the judiciary and legislatures.

The “repatriation [sic] initiative” that resulted in the enactment of the Charter in 1982 was a “classic Canadian compromise,” said Joyal. Since that time, he has suggested that judges have expanded the scope of the Charter far beyond what was intended and resulted in an imbalance between the judiciary and legislature. “This flight from politics and the accompanying rights-inspired public discourse often leaves the broader citizenry on the sidelines. They are sitting on the sidelines in a potentially disempowered state, not always able to understand, discuss, debate or grasp what are now the highly technical and legalistic formulations and tests which more often than not, form the basis of a final determination concerning a significant societal issue,” Joyal stated.

Other senior judges, including Federal Court of Appeal Justice David Stratas, have also been the keynote speaker at the foundation’s events. Stratus, in a 2016 speech, lamented what he said is the lack of application of legal doctrine in judicial decision-making in Canada.

He was very critical of the Supreme Court’s decision in Carter v. Canada, which struck down the prohibition against physician-assisted dying. “The outcome of major constitutional cases will now very much depend on how a single judge at the bottom of the judicial heap happens to characterize constitutionally significant social science evidence. Is that sound doctrine?” asked Stratas.

The Manitoba Bar Association issued a statement in support of Joyal after media reports quoted critics who suggested the judge might not uphold Charter rights for minority groups. “Such a suggestion is entirely improper and indeed false,” said the association.

While speaking to outside groups should be encouraged, MacKay notes that a judge may open themselves to criticism if the organization clearly has a political agenda. “Whether it is left wing or right wing, look carefully,” he says.

Soon after the Canadian Judicial Council publicly announced its review of the existing ethical principles for judges, CALE sent a letter with several suggestions, including a much broader consultation before any final decisions are made.

Amy Salyzyn, president of the legal ethics organization, says the process should not be rushed. “It will take time to do it right. That speaks to public engagement about the new principles and hearing from a variety of stakeholders,” adds Salyzyn, a professor in the faculty of law at the University of Ottawa.

In the Berger proceeding, while no disciplinary action was imposed, he decided to resign from the bench months later. The prominent B.C. lawyer continues to practise at the age of 86. Two years ago, the provincial government retained him as part of the legal team fighting the expansion of the Trans-Mountain pipeline.

The public record of his 1982 disciplinary hearing includes correspondence from Berger to Supreme Court Chief Justice Bora Laskin.

The judge who filed the complaint suggested that the comments to the media were more serious than if he had “slept with a prostitute” or engaged in impaired driving, Berger noted.

“My remarks were not directed to the Prime Minister or any one of the premiers, nor to any political party, but to our leaders collectively,” wrote Berger. “I believe it is a mistake to place fences around a judge’s conscience,” he added. “To suggest that a judge has no right to speak out on these issues, at a moment of constitutional renewal unique in our history, is to reduce the great issues of Canadian history to arid protocol.”

 


Justice Donald McLeod
Ontario Court of Justice

A panel of the Ontario Judicial Council concluded last December that Justice Donald McLeod’s involvement with the Federation of Black Canadians was “incompatible with judicial office.” However, it did not rise to the level of undermining public confidence in his ability to perform the duties of his office, so a complaint against him was dismissed.

McLeod co-founded the group in 2016, to try to find ways to stop the cycle of gun violence, after a young pregnant woman was fatally shot in Toronto. McLeod and members of the organization met on more than one occasion with federal politicians and Prime Minister Justin Trudeau. The judge sought advice from the ethics committee of the Ontario Court of Justice, which initially gave approval but later expressed concern that the organization was involved in lobbying on issues of importance to the Black community.

It was never suggested that McLeod personally engaged in lobbying or partisan activity. He argued that he was bringing public attention to issues that impact a vulnerable and disadvantaged community.

The panel, headed by Ontario Court of Appeal Justice Robert Sharpe, stated that while McLeod’s goals were “laudable” the issue could not be decided based on good faith.

“It is incompatible with the separation of powers for a judge to enter the fray and ask political actors for policy changes and the allocation of resources, however worthwhile the judge’s motivating cause,” it stated. “There are limits that govern judicial participation in civic and charitable activities and interaction with politicians and government officials,” it explained.

 

Justice Patrick Smith
Ontario Superior Court

 

A review panel of the Canadian Judicial Council found last fall that Justice Patrick Smith breached a section of the Judges Act that prohibits engaging in any outside occupation when he agreed to be the interim (academic) dean at the law school at Lakehead University in Thunder Bay. The panel referred the matter back to Robert Pidgeon, senior associate chief justice of the Quebec Superior Court.

Pidgeon had earlier ruled that Smith’s conduct could result in his removal from the bench. Ultimately, Pidgeon determined that expressing his concerns to Smith was the appropriate course of action.

The council heard that the interim president of the university wrote to Smith in April 2018 and made an “urgent request” for him to consider being the interim dean. The request came after the previous dean resigned and made allegations of systemic racism at the faculty.

Smith, who has supernumerary status, received approval from the chief justice of the Ontario Superior Court to take a six-month leave of absence from the court. He was not to receive any compensation from the faculty and his duties were to be limited to academic activities. An outside legal opinion was sought by the chief justice, which concluded this arrangement complied with the Judges Act.

The chief justice also wrote to then-justice minister Jody Wilson-Raybould for approval. I have “no concerns” about a “special leave,” said Wilson-Raybould in a written reply.

A core mandate at the law school is Indigenous law. About 15 per cent of students at the school identify as Indigenous. Smith has significant experience as a judge in the region and was consulting with Senator Murray Sinclair on ways to ensure it fulfilled its mandate.

Local media reports highlighted complaints about the appointment after it became public. Smith stepped down from the interim position after four months. The initial ruling of Pidgeon, referring the matter to the review panel, found that Smith engaged in misconduct by not considering the “public controversy” his interim appointment would generate.

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